The Iran Deal is not a treaty

The Joint Comprehensive Plan of Action, better known as the Iran Deal, was signed on July 14, 2015. The deal was immediately denounced by a host of Republicans, from elected officials down to the grassroots. It didn’t take long for talk radio to seize upon the deal, and use it as yet another club with which to bash not only the President, but Speaker John Boehner and Majority Leader Mitch McConnell. The deal is a treaty, they all opined, and the Senate has to ratify a treaty under Article II Section 2 of the Constitution.

The firestorm of abuse hurled by talk radio at House and Senate Republicans – mainly Senate Republicans – was unceasing. Mark Levin said “[t]he United States Senate just rewrote the treaty provision of the Constitution. … These people in Washington, D.C., usurp the Constitution all the time. The treaty provision of the Constitution could not be clearer.” He went on to say “[t]hese damn fools in the United States Senate just gave up the treaty power, as they’ve given up the power of the purse, as they’ve given up the power over immigration, and you are supposed to think this is a great day and celebrate it. Not me, dammit!”

Limbaugh had similar thoughts, saying “[n]ow we have the most feckless Republican Party leadership in I don’t know how long, which has chosen for six years not to fight back against any of this. They have chosen to abrogate their constitutional powers for all of the reasons we’ve stated, and there are probably additional ones.” He went on to say “[t]he way this would work under the terms of the Constitution and the way it has been done since the founding of the country, an international agreement like this is a treaty, and once it’s a treaty it must be ratified by the Senate. Whatever the president negotiates, whatever his executive branch negotiates has to be ratified. The ratification process requires — I know this is gonna be news to many of you low-information people tuning in, never heard this before — the ratification process requires 67 votes.”

I would point out what Michael Savage had to say, but I can’t listen to more than three minutes of him yelling before I turn the channel back to WTOP.

The President knew going in to these negotiations that the chances of him getting sufficient votes for a treaty ratification vote in the Senate were virtually nil. So the instrument they negotiated – the Joint Comprehensive Plan of Action – isn’t a treaty. It’s an executive agreement, and it was negotiated that way on purpose.

That’s why Rush, Levin and the grassroots supporters who have taken their word as gospel instead of diving deeper into the issue are wrong. That’s why the House and Senate pushed through the Corker Bill and got Presidential approval for it – so that the House and Senate would play some kind of role in a deal that the President could have simply ignored them on.

The reality of the law and the political machinations that got us to this point on the Iran Deal are clear – there was never any way that Congress could stop the President from getting this deal done. The best Congress could hope to do was register their loud disapproval in show votes, whether under the Corker Bill framework or some other way. That’s what they’ve done, and that’s why the Iran Deal is going to go into effect on Thursday despite the bipartisan vote against the deal in the House.

Since the founding of the Republic, Presidents have had wide latitude in exercising their role as Commander-in-Chief and as lead diplomat of the United States. This has included the power to enter into treaties, as contemplated by Article II Section 2, as well as entering into other agreements that don’t require Congressional approval. According to the Congressional Research Service (CRS), since 1789, the United States has concluded over 18,500 executive agreements. In that same time period, only 1,100 treaties have been ratified by the United States.

Some of those executive agreements were made with Congressional approval, some weren’t. Almost every free trade agreement, including NAFTA, CAFTA and (if it is approved) TPP, are considered Congressional/Executive Agreements, because they require Congressional authorization and changes in the law to implement. Some executive agreements do not require Congressional action to sign and implement, like the North Korea “Agreed Framework” that was developed by the Clinton Administration in the mid-90s to attempt to thwart Pyongyang’s nuclear ambitions (an agreement that obviously failed). The State Department keeps a running tally of executive agreements that the United States has entered into, most of which will be lucky to even be mentioned at a State Department subcommittee hearing, let alone be voted upon.

The Supreme Court has held over and over again that the President has the authority to enter into executive agreements, and has done so since the founding.

Most recently, in American Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003), the court held that “our cases have recognized that the President has authority to make “executive agreements” with other countries, requiring no ratification by the Senate or approval by Congress, this power having been exercised since the early years of the Republic.” It is rare, however, for the judiciary to decide the status of an agreement – whether treaty or executive agreement – because the courts can only decide cases and controversies and can’t simply issue advisory opinions. Rarely would anybody have suffered the actual, redressable injury necessary to have the standing in courts needed to make the determination.

Federal law contemplates executive agreements that don’t require Congressional approval. 1 U.S.C. § 112b makes it clear that Congress expects executive agreements to be made, and they want notification of them within sixty days of the agreement entering into force. It makes little sense for Congress to demand to be notified of something after it has already entered into force if, as talk radio would have you believe, all deals like this are treaties requiring Senate ratification.

So what’s the difference between a treaty and an executive agreement? It depends primarily on how the Executive Branch chooses to treat it. The State Department has, in its Foreign Affairs Manual, a list of factors that help determine which constitutionally authorized procedure to select when negotiating an agreement. The factors include “[t]he extent to which the agreement involves commitments or risks affecting the nation as a whole;” and “[w]hether the agreement can be given effect without the enactment of subsequent legislation by the Congress[]” among other things. At the end of the day, however, the decision as to whether something is treated as a treaty or an executive agreement is left to the Executive Branch – and, if there’s a dispute that can be resolved, to the Judiciary.

Another a quick point about the deal – most of what was agreed to by the President involved lifting our existing Iran sanctions in exchange for their compliance with an inspection regime. Unfortunately, that doesn’t require action from Congress, as most of the authority to start, end, permanent or temporarily waive those sanctions has already been given to the President by Congress in the past. CRS has a white paper that goes through all of the Iranian sanctions on the books right now, and as you can see if you read it, almost all of those sanctions are waivable or alterable by the President without Congressional oversight.

Despite all this, we still have talk radio and many misguided Republicans, including folks like Ted Cruz, out there spinning people up about this deal – and not just against the deal, but against Republicans for not “fighting hard enough.” This is the kind of thing that I find very frustrating. Rank and file Republicans are so jaded with our leadership in Washington that anything that feeds into the narrative that so many want to believe – that the Republican leadership in Washington is spineless (which Levin joked about just last week, suggesting Republicans take some scaffolding from the repairs to the Capitol dome and use it on their spines) – gets treated as holy writ. It shouldn’t be. This stuff is being peddled by people with agendas and campaigns to run, and those agendas and campaigns tend to work best when they pit Republicans against other Republicans. So instead of thinking critically, we’re seeing too many otherwise educated and intelligent Republicans listening to people who haven’t done their homework and who make a living making us angry. Many people count on talk radio to do the research they don’t have time to do, so it’s very frustrating to see them come to ridiculously wrong conclusions about stuff that’s clear as soon as you spend a few hours looking at it.

What’s worse is when you have folks who should know better, like David Brooks, repeating talk radio nonsense instead of doing the research.

The Corker Bill represented our best chance of getting any kind of Congressional oversight on the Iran Deal. Not of blocking it – because that was never possible – but of getting oversight.

The President essentially agreed, by signing the Corker bill into law, to give Congress a chance to take a vote on disapproval of the agreement. That he would veto anything that didn’t give him what he wanted was a foregone conclusion, and really the only reason why he signed the bill instead of vetoing it in the first place. But it was still the only chance Congress had of doing anything, even if doing anything was still going to be ineffective. Sometimes, the best you can get out of a political deal is getting your opinion down on record.

Bottom line – the Iran Deal isn’t a treaty because the Executive Branch says it’s not a treaty. They have the power to make that determination. This isn’t my opinion, or my desire – it’s the law as it stands today. Congress can stamp its feet, but it can’t stop the deal, no matter how much they want to or we, the people, want them to.

As for the merits of the deal, we can debate those another day. Suffice it to say, whether we have this deal or we don’t have this deal, the only way we are ever going to be 100% certain that Iran can’t get a nuclear weapon is a full blown invasion, including ground troops, that destroys all of their refining equipment and seizes whatever fissile material they’ve accumulated. Anything short of that leaves room for Iran to cheat. If that’s not something we are willing to do yet, then we need to be negotiating.

Whether you agree on the merits of the deal or you think it’s going to lead to nuclear Armageddon, all of the praise or blame belongs to the President, not Speaker Boehner or Majority Leader McConnell. It’s time that we stop bashing our own leadership because some in the media don’t care to take the time to do their homework.

Brian W. Schoeneman is the former Editor-in-Chief of Bearing Drift and a featured columnist.